Virginia's Anti-Sodomy Law Ruled Invalid--with an Assist from UC Irvine's Erwin Chemerinsky

Virginia's anti-sodomy law has been struck down, due in part to an assist from the dean of UC Irvine's School of Law, Erwin Chemerinsky.

The decision came in a case involving sex between an adult male and a 17-year-old girl, which the Richmond, Va.-based 4th U.S. Circuit Court of Appeals agreed should be prosecuted. But a divided three-judge panel ruled an unconstitutional law cannot be used to attain justice.

William Scott MacDonald, a Vietnam veteran reportedly suffering from Post Traumatic Stress Disorder, was arrested in Colonial Heights, Va., for picking up a 17-year-old girl. He'd previously been convicted under the state's Crimes Against Nature law--which includes a provision criminalizing sodomy--for doing the same twice each with other females who were 16 and 17 at the time.

The girl in the latest case refused to service the ex-serviceman and later told police he was claiming she had sexually assaulted him. In 2005, when he was 47, he was convicted of contributing to the delinquency of a minor and criminal solicitation of a 17-year-old girl to commit sodomy.

MacDonald appealed to the Virginia Court of Appeals, arguing Virginia's anti-sodomy provision was invalid as it relates to consensual sodomy between unrelated people who have reached the age of consent. That court turned him down, noting his prior convictions for violating the state's anti-sodomy statute and a 2003 U.S. Supreme Court ruling in a Texas case that only invalidated sodomy laws involving private, consensual activities involving adults, not minors.

It's on this point the dissenting judge on the 4th U.S. Circuit Court of Appeals panel disagreed with the other two, writing that the state appeals court should be given the benefit of the doubt because the U.S. Supreme Court has yet to specifically invalidate the application of Virginia's anti-sodomy law to cases involving alleged victims of all ages.

MacDonald next turned to federal court, but that U.S. District Court mirrored the state appeals decision, finding the anti-sodomy provision was constitutional as it applied to him because the girl was a minor. Next came the appeal to the U.S. 4th Circuit, which is when Chemerinsky, the ACLU of Virginia and the Lambda Legal Defense and Education Fund joined in a brief seeking to invalidate the anti-sodomy law.

Like the three-judge panel, the brief filers have said adults who have sex with minors should be prosecuted, just not with unconstitutional laws. The Virginia attorney general has reportedly not decided yet whether to appeal to the U.S. Supreme Court.

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